Every province or territory has enacted its own laws and has its own forms, of how to apply for guardianship of a minor.
When can someone apply for guardianship?
For instance, if the parents of the child die and no one is appointed or if the current guardians are unable to take care of the child, etc. The person applying for guardianship has to be of legal age in the province they reside.
Parents who pass away with a will often appoint their spouse to be the guardian of any children. If both parents die and a guardian is appointed in the will, that appointment is often temporary – depending on the province – and the person will often have to fill out a application to keep their guardianship of the children.
Most provinces and territories have similar laws when it comes to guardianship of minor children. However, as every province is different, there will also likely be some differences, and if you are planning on applying to your provincial guardianship office, you need to know your provincial/territorial rules and regulations when it comes to guardianship of a minor.
Here are some provincial examples of rules for those wanting to become guardians of minors.
The word “guardian” also applies to the natural parents of the child in most provinces. They are considered the guardians of the minor child or children. This is regardless of whether or not the parents actually live together. Usually, the only way to remove guardianship is by court order.
The only way a parent is not considered a guardian is if he or she has never lived with the child, with these exceptions:
- The parent has still taken regular care of the minor child; or
- There is a written agreement that states that the parent is a guardian.
Who can be a guardian?
There are no limitations to who can apply to become a guardian of a child.
People applying to become guardians can include:
- Parents who aren't guardians;
- Other family members; or
- Other people who aren't family members.
In order to apply for guardianship, the person is required to have given cared for the child for at least six months. However, a judge has discretion to waive this requirement if he or she feels it’s in the child’s best interest.
Here is what the judge looks at:
- You are able and willing to assume the responsibility of a guardian;
- The child has consented – the child must be 12 years old or older; and
- The child will benefit from your appointment as private guardian.
Guardianship: custody vs. guardian of property
Some provinces make a distinction between having a physical guardian of a child and being a guardian of property for the child.
For example, in Nova Scotia there is a distinction between the guardian of a child, who has actual custody and the person who handles the child’s estate and property is called a “trustee.”
In Ontario, if a person is appointed in the parent’s will to be the guardian of the children’s property, they are in charge of managing the estate and property of the child. A custody appointment is separate but the guardian of the children’s property follows the same rules as the custody appointment.
As issues surrounding guardianship can be difficult it’s often a good idea to consult with a lawyer.
Guardianship British Columbia